Prosecutors in Tri-Cities trying to stop growing cases of elder abuse

SULLIVAN COUNTY, TN (WJHL) – About one in ten Americans over the age of 60 have experienced some form of elder abuse, according to the National Council on Aging.

We found out before now, there wasn’t an organized system to prosecute abusers, and many of these cases fell through the cracks.

Of the millions of elderly adults abused each year, one study estimates that only 1 in 14 cases of abuse are reported to authorities.

Now because of a new state law, district attorneys throughout Tennessee are going after these cases more aggressively than ever before, and trying to make sure when abuse happens it’s reported

“It’s very sad to see these,” Amy Hinkle said. She is a Sullivan County assistant district attorney and the chief prosecutor for vulnerable adults cases.

“We’ve had cases where people have been allowed to fall out of the bed and laid for 12 hours or longer,” Hinkle said.

She said though these types of cases are not in the public spotlight often, it’s something she sees every day.

“We have had cases where family members have exploited which means financially taken advantage of these people who are left at home no food, no medicine, sitting in their own urine and feces,” Hinkle said.

Now district attorneys are working on a new initiative called VAPIT, Vunerable Adult Protective Investigative Team, made up of law enforcement, prosecutors, and protective services. Its goal is to seek justice for vulnerable adults including the elderly and adults with disabilities.

“Prosecuting those cases that we find that there’s criminal activity and helping and assisting and providing resources for the victims and also educating the public and asking the public if they suspect abuse to report it,” Sullivan County District Attorney Barry Staubus said.

One change with this new law is prosecutors now have access to closed Adult Protective Services cases.

“We could have a case in which the victim has been removed from the home, placed in a nursing facility. That would close an Adult Protective Services case,” Hinkle said.

But now prosecutors can reopen that case and make sure the offender is prosecuted.

Hinkle said since taking steps to coordinate with the other agencies, she is seeing more instances reported.

“There are some days I get ten or more a day, there are some days I get maybe one to two, but it’s very rare that there’s not even one reported on a day,” Hinkle said.

Another change,  law enforcement officers are now trained on how to spot and handle these types of cases.

The law requiring the VAPIT initiative goes in to effect January 1^st.

This isn’t the only recent change related to elder abuse, after a 2013 WJHL Community Watchdog investigation into the state’s abuse problem, lawmakers stiffened penalties for people guilty of elder abuse and approved the creation of a task force.

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Prosecutors in Tri-Cities trying to stop growing cases of elder abuse

2 Philly judges removed from bench for ethics violations

Two more Philadelphia judges have been kicked off the bench, the latest development in an FBI probe of judicial corruption here.

The Pennsylvania Court of Judicial Discipline ruled on Friday that Municipal Court Judge Dawn Segal and Common Pleas Court Judge Angeles Roca be removed from office for their involvement in separate case-fixing schemes.

Lawyers for both judges say they are appealing the decisions to the state Supreme Court.

In October, the disciplinary court found that Roca had unethically intervened in a tax case involving her son by calling then-Municipal Court Judge Joseph Waters Jr., who reached out to Segal, who then reversed herself and issued a ruling favorable to Roca's son.

Waters was sentenced in January 2015 to two years in prison for fixing cases on behalf of campaign donors and political allies. He was released about a month ago.

In July, the court found Segal guilty of seven violations of judicial ethics rules, including bringing the court into disrepute.

"I got something in front of you at 1 o'clock today," Waters told Segal in an intercepted 2011 phone conversation in which he asked for favorable treatment of a politically connected defendant appearing before her.

"Oh, OK. OK," Segal responded, according to the disciplinary panel.

Wiretaps also captured Segal telling Waters she had helped him with her rulings.

In Segal's case, the court acknowledged that Segal had been approached by Waters, "a corrupt judge."

 And, the court said, Roca at first had only sought advice from Waters before the conversation extended to intervening in her son's case. But neither judge stood up to Waters, the court said.

"As we have said in more detail in prior decisions, when it comes to corrupt acts and the derogation of a fair and just judicial process, a judge must have 'the willingness to stand up for what was right and buck a corrupt tide,'" the court wrote in both rulings.

Roca and Segal, both Democrats, had been on unpaid suspension. If the rulings stand, they would be ineligible to hold judicial office in the future.

"I'm very disturbed by the decision," Roca's attorney, Samuel Stretton, said Tuesday.

Stretton said he was appealing the ruling because the disciplinary court ignored case law and treated Roca's and Segal's cases too similarly.

Segal's lawyer, Stuart Haimowitz, said he also is appealing.

"Judge Segal expected to be sanctioned for what she did. We hoped and expected the Court of Judicial Discipline to have considered Judge Segal's actual conduct and its own precedent when it imposed its sanction," Haimowitz said in a statement Tuesday. "Instead, it appears it took a 'get rid of them all' approach. In so doing, the citizens of Philadelphia County lost a good judge."

Stretton and Haimowitz had sought suspensions for the judges.

In addition to Waters, who pleaded guilty to mail and wire fraud, Municipal Court Judge Joseph O'Neill pleaded guilty in May to federal charges connected to the judicial case-fixing scandal.

O'Neill admitted he lied to FBI agents who were investigating special treatment he gave to a Democratic fund-raiser in 2011, at Waters' request.

"He's a friend of mine, so if you can, take a hard look at it," Waters told O'Neill in a conversation caught on an FBI wiretap.

"No problem," O'Neill replied.

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2 Philly judges removed from bench for ethics violations

Elder financial abuse costs millions in Virginia, state report says

Tough to see and tough to prosecute, the financial fraud and abuse that hits Virginia's elderly and incapacitated adults amounts to more than $28 million a year but could exceed $1 billion, a new state report estimates.

Social workers assigned to adult protective services work are finding more than 1,000 cases of financial exploitation a year, the state Department for Aging and Rehabilitative Services reported.
Hardly any are prosecuted.

And a deeper dive into a random sample of 141 cases found:

•More than half of the fraud, theft or abuse was by a family member.
•Nearly two-thirds of victims live in their own home.
•More than a third of cases included outright theft of cash or checks.
•About half the cases documented referrals to police.
•Two cases ended with a conviction.

"Adult financial exploitation leaves its victims and their family members devastated and weighs heavily on adult protective services workers, law enforcement personnel, prosecutors and judges who respond to it," wrote James Rothrock, commissioner of the aging and rehabilitation services department, in forwarding the report to Gov. Terry McAuliffe and the General Assembly.

Although not all the case files described the amount of money lost, in 76 instances social workers found losses amounting to $2.1 million. Multiplying the average loss of $27,782 by the more than 1,000 cases a year that social workers report suggests that verified reported fraud is running about $28 million year.

That doesn't include losses such as those suffered in eight of the 141 cases where victims' homes or land were sold without their knowledge, or the three cases where they were evicted from their homes, or the two cases where their cars were sold or transferred, or the two victims whose wills were changed without their knowledge.

And since all those 1,000 verified cases are probably a small fraction of actual instances, the department believes unreported cases could amount to more than $1 billion, based on estimates of under-reporting of all types of abuse.

"It's really an ugly situation," said state Sen.-elect Monty Mason, D-Williamsburg, whose special interest in elder issues has led him to sponsor or co-sponsor several measures, including co-sponsoring the legislation that called for the aging department's report.

"We shined some light on it," he said. "A big part of the fix is more awareness, more understanding of the fact that it is out there."

Because the cases so often involve family members or caregivers, or victims who are too embarrassed to complain and seek redress, they easily fall between the cracks, Mason said.

"These can be very difficult, delicate cases," said William Massey, chief executive of the Peninsula Agency on Aging, the state-sanctioned regional body that's meant to be a first stop for older Virginians seeking help.

Victims are often unaware they've been victimized, so Massey said it is often up to his agency's care coordinators, other social services agencies, or friends and family to spot a problem.

A Daily Press review of a database of 10 years worth of Hampton Roads circuit court cases, assembled after state court administrators refused to release the record under the Freedom of Information Act, found only four individuals who had been charged under the section of state law referring to financial abuse of the elderly or incapacitated. Only two ended in convictions. One defendant served a month in jail, the other 10 days.

Aging and rehabilitative services that department staff said their records review did not show why more cases are not referred but added that some social workers report that police often view exploitation involving family members or holders of a power of attorney letter as a civil matter.

Department staff also speculated that in many cases, victims were unwilling to press charges.

"Sometimes, the perpetrator is someone they care about and don't want to hurt," said Newport News Commonwealth's Attorney Howard Gwynn. In many cases, the person abusing an elderly person is the only one providing any help at all, and victims worry about what will happen to them if a case is prosecuted, he said.

Gwynn said he was shocked after attending a seminar on elder abuse a few years ago where Richmond officials reported about 100 cases of physical, mental and financial abuse, and he could recall only a handful of cases that came through his office.

"I suppose I could have said we don't have a problem, but I was worried that maybe we weren't paying attention," he said.

Gwynn has recently hired an attorney who worked on elder law cases for 16 years in the Philadelphia prosecutor's office and is pushing for training for police officers, firefighters and city inspectors to keep a sharp eye out when responding to calls.

"If you're in codes compliance and looking at a complaint about junk in someone's yard, and see a terrified adult and a telephone with a handset taped to the base, you need to know what that means," he said.

Gwynn is also trying to talk up some changes in the law.

One would address a major challenge in investigating and resolving cases: the fact that individuals defrauding vulnerable adults often have received power of attorney letters from their victims. That's a document that can, among other things, give authority to handle money, dispose of property or make decisions about care. Gwynn thinks investigators need more authority to question people holding power of attorney about how they are handling their responsibilities.

Another would deal with a challenge in bringing a case to court: Nursing home residents and other very frail adults may be simply unable to get to court. Legislation making it easier to take depositions from such adults and use them in court would help, Gwynn said.

But the key, he said, is for families, neighbors and friends to keep an eye out.

"It is a community issue," he said.

Full Article & Source:
Elder financial abuse costs millions in Virginia, state report says

86 Year-Old Grandpa Learns to Knit So He Can Make Premature Babies Tiny Hats

At 86-years-old, Ed Moseley picked up a meaningful hobby: knitting.

The retired engineer learned his new skill after a nearby hospital in Atlanta reached out to his assisted living home asking people to knit hats for premature babies. Moseley accepted the challenge, picked up a pair of needles and eventually made 55 of the 300 hats his team donated. He says there is a constant need for the tiny hats and, along with his care manager Lisa, plans to keep make about 30 every month.

Source:
86-Year-Old Grandpa Learns To Knit So He Can Make Premature Babies Tiny Hats

Warning: Guardianship Can Take A Toll On Advisor’s Psyche

There are favors a financial advisor can safely do for a client or a client’s family without a second thought.

Becoming a guardian is not one of them.

“Becoming a guardian is not a role to be accepted without a considerable amount of thought no matter how well you know the person or his or her family,” said Sally Hurme, author of several books on guardianship for AARP and the American Bar Association.

The danger is not being threatened with fines or jail for alleged or real misdeeds. Chances of that happening are slim because court oversight of guardians tend to be frail and the individual being protected is usually too weak of body and mind to complain to the authorities.

Instead, the hazard for a financial advisor taking on the responsibilities of guardianship is being swept up in a whirlwind of uncertainties, unfamiliar duties and family feuds.

Even something as seemingly simple as getting the bank records of the senior under a court-approved guardianship arrangement may not be simple.

With a court order, getting the records may take two minutes at one bank and two days at another, said Hurme, a lawyer who once served as the public member of the CFP Board’s Discipline and Ethics Commission.

Her advice: go to a branch manager. Don’t ask a teller.

She cautioned that if the senior is running out of money, a court can reduce the fee a guardian gets.

One often aggravating and time-consuming duty the courts often don’t compensate a guardian for: hours on the phone and in meetings with family members at each other’s throats.

The starting point for becoming a financial guardian (called guardian of the estate or a conservator) or having full responsibilities for an incapacitated individual (guardian of the person) is the courts.

And that is where the problems often begin.

“One of the problems is the duties of a guardian and oversight can vary widely even locally. Even in a single county one judge may not check a guardian’s annual reports, another judge might require a lot of documentation of a guardian’s activities and have an auditor,” said Brenda Uekert, director of the Center for Elders and the Courts of the National Center for State Courts.  (Click to Continue)

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Warning: Guardianship Can Take A Toll On Advisor’s Psyche

COMMENTARY: Protect elderly from holiday scams

The typical Texan’s bank account takes a hit during the holidays, with gifts to give, parties to attend and travel. But for far too many older Texans, the economic jolt felt this time of year takes on a more sinister meaning.

Already prone to experiencing loneliness and isolation during the holidays, older people also are prime targets of fraudsters during this festive period.

Whether it’s a scam perpetrated by a stranger or financial exploitation by a trusted source or relative, the impact goes far beyond the pocketbook and affects the physical and emotional health of the victim. Every year, abuse and exploitation rob older Americans of an estimated $3 billion — and this is only the amount reported.

During the holidays, the financial stakes are great, with money exchanging hands and older adults in closer proximity to family. Many of us have heard about the “grandparent scam.” A year-round favorite of fraudsters, during the holidays it can come decorated with a special plea: A loved one in trouble and needing money to fix a car, get out of jail, or to make it home for the holidays.

And there’s the ever-popular “IRS scam,” which takes on a vicious twist in December and January. A caller threatens an elder with the possibility of arrest and spending the holidays in jail for unpaid taxes or a fake debt. Now is also when imposter charities surface, typically making a sympathetic plea for year-end, tax-deductible donations.

Opportunities abound this time of the year to financially exploit a trusting elder. When a criminal takes advantage of an older person by forging a signature or coercing them to sign a will, it takes a toll on the physical and emotional health of the victim. These criminals may be a stranger, an aide who comes into the home or someone else in a position of trust, like a family member. If you suspect someone you know is vulnerable to financial fraud or exploitation, take action. Keep an eye on your loved ones, their spending patterns and any new connections they may not want to talk about. AARP has good advice available online through its Fraud Watch Network at www.aarp.org/fraudwatchnetwork.

But remember, grinches don’t go away after the holidays; they operate year-round. That’s why AARP is fighting for new laws, policies and practices to crack down on abuse and financial exploitation, and seeks to strengthen protections for victims.

The Texas Legislature is exploring ways to curb financial exploitation of the elderly. When the new legislative session begins Jan. 10, AARP will support efforts to fight elder abuse and exploitation, including in the area of prevention. Local banks and credit unions can play a vital role in preventing and responding to elder financial abuse. That’s why AARP Texas is urging better training and reporting by financial institutions so that bank employees can spot and stop suspicious transactions before someone is scammed.

We also need to preserve and strengthen state Adult Protective Services (APS), which investigates complaints about financial exploitation of the elderly by individuals who have an ongoing relationship with the alleged victim. APS’ jurisdiction should be expanded to include the ability to investigate financial exploitation complaints against those without an ongoing relationship with the alleged victim.

And very importantly, we need to better support community coordination models. Victims of elder financial exploitation are often confused about where to turn for help. Fraud-fighting efforts like the Elder Financial Safety Center in Dallas are working successfully to prevent, protect and prosecute financial crimes. More of these community coordination models are needed in Texas.

Texas’ population age 65 and older is set to more than double from 2010 to 2030. This means more opportunities for scammers. But with education, vigilance and smart legislation, older Texans can be protected in the holiday season and year round.

Tim Morstad is an associate state director for AARP Texas, specializing in consumer and financial affairs.

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COMMENTARY: Protect elderly from holiday scams

Ohio ranks 30th in elder-abuse protection

WASHINGTON, D.C. — With the share of U.S. adults aged 65 and older expected to comprise more than a fifth of the entire population by 2029 and 23 out of 24 elder-abuse cases going unreported every year, the personal-finance website, WalletHub, conducted an in-depth analysis that identifies 2016’s states with the best elder-abuse protections.

To determine which states fight the hardest against elder abuse, WalletHub’s analysts compared the 50 states and the District of Columbia across 10 key metrics. The data set ranges from “share of elder-abuse, gross-neglect and exploitation complaints” to “total expenditures on elder-abuse prevention per resident aged 65 and older” to “financial elder-abuse laws.”

Ohio ranked 30th overall among the 51 entities. The state came in 30th for elder-abuse, gross-neglect and exploitation complaints per resident aged 65 and older; 31st for total expenditures on elder-abuse prevention per resident aged 65 or older; 19th for total expenditures on legal assistance-development per resident aged 65 and older; fifth for total long-term care ombudsman-program funding per resident aged 65 and older; 35th for financial elderly abuse laws; 37th for number of eldercare organizations & services per resident aged 65 and older; fifth for presence of elder-abuse forensic centers; 22nd for number of certified volunteer ombudsmen per resident aged 65 and older; 13th for frequency of assisted-living facilities inspections; and 38th for quality of nursing homes.

States with the best elder-abuse protections were, in rank order, District of Columbia, Nevada, Massachusetts, Wisconsin, Missouri, Tennessee, Iowa, Louisiana, Vermont, Hawaii.

States with the worst protections, with worst last in the list, were, Alabama, Kentucky, Idaho, North Dakota, New Jersey, South Dakota, Rhode Island, California, Wyoming and South Carolina.

Alabama, Arizona, Florida, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, New Hampshire, New Mexico, Ohio, Texas, Utah, Virginia, Wisconsin and Wyoming have no legislation that protects the elderly from financial crimes.

Alaska has the highest total, long-term-care-ombudsman-program funding per resident aged 65 and older, $11.18, which is 16 times higher than in Nebraska, the state with the lowest at $0.68.

The District of Columbia has the highest number of certified, volunteer ombudsmen per 100,000 residents aged 65 and older, 82.26, whereas both South Dakota and Wyoming have none.

Missouri has the highest frequency of assisted-living facilities inspections, twice per year, which is 10 times higher than in both California and Nebraska, the states with the lowest at once every five years.

North Dakota has the highest nursing-homes quality (share of certified nursing-home beds rated 4 or 5 stars), 62.9 percent, which is two times higher than in Louisiana, the state with the lowest at 27.2 percent.

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Ohio ranks 30th in elder-abuse protection

Family’s guardianship experience shows a system out of control

Regarding Diane Dimond’s series [Who Guards the Guardians?], our sister started this guardianship stuff and, yes, it has spiraled out of control.

A very similar chain of events has started, with court proceedings the same as your articles and similar titles involved to handle all these affairs.

A guardian, who never seems to be available when needed, has spent $33,000 since June 2016.

Mom is now completely broke and was asked to leave the nursing home they put her in as there is no money to pay them. Her home was put up for sale, but has not sold at this point. So she was kicked out on Nov. 30.

The guardian now has lied to be able to admit her to a hospital so that she has a place to be. We had cleaned out her house, as directed by them, to get it ready to be sold and now it is devoid of any furnishings.

We have since found out they have depleted her bank accounts. The accounts are sitting there overdrawn and her utilities have been disconnected for nonpayment. Her homeowners insurance has been canceled for nonpayment.

We are completely powerless to do anything about it.

Mom fell at the assisted living nursing home where they had her. They didn’t even take her to a medical facility to be checked out until we demanded they do so.

After they discharged her, we called the guardian and, of course, he didn’t show up. We took her to my house to spend the night instead of taking her back to the nursing home. The guardian threatened to have me arrested.

I had to call police to make a report – in fear he could actually do so.

We have called Adult Protective Services and the Attorney General’s Office, and it seems all these agencies cannot investigate any of these proceedings. No one will help our mom, who is over 90 years old. And we can’t, either.

She was living at home with her son and surviving just fine until all this. She could maintain her residence as it was paid in full. She gets $753 a month from Social Security. That was enough to pay her bills, including her home insurance and life insurance policy. They have also cashed that in.

How can these people do this and what can we do about it? Please let us know if there are any avenues to do something.

We cannot afford an attorney of our own to fight this. None we have talked to will even take a case like this.

What an atrocity this has become. The state of New Mexico should be ashamed for doing things like this to our seniors.

We have documents of what happened before court and interviews between prospective guardians and the attorney in charge of the process, who for various reasons would not let any of us be guardians due to “bickering,” as she put it.

So they could get this done, before the court hearing, our sister’s attorney even called the police department and tried to get us arrested for abuse. The police were told there were guns in the house and Mom was in danger. There was not and the police left.

The guardians are now waiting with Mom at the hospital to place her in yet another nursing home, paid for by the state because she doesn’t have any money.

My brother offered to get her things out of storage and take her home, but the guardian said it would only be for a couple of weeks until they find her a place in a nursing home, and the guardians don’t have money to pay utilities.

This is just a living nightmare. Who can protect our seniors? Help!

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Family’s guardianship experience shows a system out of control

See Also:
Who Guards the Guardians?

Editorial: Guardianship system needs accountability

Senator Jerry Ortiz y Pino

“We are faking it. We pretend like we have a guardian system and there’s nothing in place.”
– Sen. Jerry Ortiz y Pino, D-Albuquerque

A 2008 audit of ongoing guardianship cases found problems with “25 to 35 percent and maybe more … enough cases that we realized we should take it as an alarm.”
– Ted Baca, then-chief judge of the 2nd Judicial District Court

How can a group of strangers take control of an elderly individual and their estate; disregard retirement preparations, including wills, trusts and powers of attorney; drain bank accounts, and sell off belongings and property to pay themselves and colleagues; even bar family members who had been caregivers for years from seeing their loved one – all with the imprimatur of the court?

They can. And they have. In virtual secrecy and sometimes without the person about to be relegated to “ward” status and with no rights ever appearing before a judge. In other cases, the process is well underway before there is even a hearing where all family members have an opportunity to be heard.

All this happens in a well-intentioned and necessary guardianship “system” that has virtually no outside accountability – Judge Shannon Bacon of Albuquerque admits it essentially is an “honor system” because the underfunded courts lack money to review or audit cases as the state “doesn’t have three cents to rub together.”

It is wrong and it needs to change.

Reporter, author, columnist and television commentator Diane Dimond uncovered all this and more in her five-part investigative series on guardianship in New Mexico [Who Guards the Guardians?] published by the Albuquerque Journal (the entire series can be found at ABQJournal.com).

Dimond, an Albuquerque native, recounts the story of an estate valued at $5 million drained to $750,000; a 17-acre North Valley ranch sold at what would appear to be far below market value to someone who turned around and sold it to the state for twice the price; children shut out from caring for their mother by court-appointed for-profit professionals; familiar medical professionals replaced with strangers – and all without the judge who signed off on the arrangement ever interviewing 79-year-old Blair Darnell or holding a hearing to determine whether she was, in fact, “an adult incapacitated person.”

That label automatically revoked Blair’s civil rights – she could no longer travel alone, vote, enter contracts, decide who her doctors were, say who could visit her home or spend her own money. Instead, her court-appointed guardian and conservator called all the shots – including declaring that, if the family couldn’t get Blair’s beloved dog out to “relive(sic) herself, she must go.”
Unfortunately, problems in guardianship cases are not rare.

Former Chief Judge Ted Baca ordered a review during his tenure that found problems in a quarter to a third of cases checked by lawyers on a volunteer basis – including wards who had been abandoned by guardians or were living in dilapidated surroundings without enough nourishment.

More than one attorney told Dimond they advise families to steer clear of the system because there are no checks and balances, and excessive secrecy.

When the best thing you can say about a system is to avoid it, there’s a problem. And the attorneys and family members who spoke to Dimond did so in fear of reprisals and in violation of what retired District Judge Anne Kass of Albuquerque calls an inbred “code of silence.”

There’s the daughter of a deceased ward who asked for clarification of her mother’s $5,000 funeral expense because the $1,000 cremation fee was prepaid and services were held at her mother’s home.

There’s the daughter of a deceased ward who was forbidden to see her father during the final months of his life because she challenged the conservator’s proposed distribution of funds without an independent forensic audit.

There are the daughters of a ward who learned that, after 25 months in charge, the conservator had not paid taxes on their mother’s property in Texas and foreclosure was imminent.

Imagine being told out of the blue that you can’t see your elderly and frail mom or dad. Imagine being elderly and frail, and being told you can’t see your children. All because the guardian thinks there is too much “bickering.”

Imagine carefully planned financial decisions and legal instruments being thrown out so court-appointed for-profit folks can be paid to make all the decisions.

Professionals in the system are unapologetic. They say their responsibility is to the wards, not their families. They have been accused of being threatening and intimidating, and have been known to tell people to never again contact them.

And the majority of those entrenched professionals who live off New Mexico’s guardianship system – lawyers, guardians, conservators, providers who range from dog walkers to in-home caretakers – maintain the system is working just fine, thank you very much, in protecting the interests of the “incapacitated.”

Judges are on that same bandwagon.

In an op-ed in today’s Journal, 2nd Judicial District Court Chief Judge Nan Nash, and elder and disability attorneys Amanda Frazier and Judith Paquin defend the system and the secrecy. It is simply more of what Ortiz y Pino found in 2013 when he sponsored a measure to establish a task force to look into complaints: “What we ran into, frankly, was that anytime we got into guardianship issues, the attorneys who deal with probate in the state went ballistic – they did not want us to even open the door.”

Baca came up against the same resistance. For several years, the court tried to get the Legislature to fund a larger study with the goal a statewide office to oversee all guardian cases. Eight years later, it is still status quo. So while, as his audit found, the system works in many cases when an elderly adult is at risk, it simply does not work in others and needs reform.

Several steps to correcting this have nothing to do with money, and everything to do with transparency and accountability. Multiple families said their complaints to the bar association, state legislators, regulatory boards, the district attorney, the Albuquerque Police Department, the attorney general and the Governor’s Office amounted to nothing, likely in great part because it’s hard to fight decisions protected by court secrecy.

While the court claims it is guarding elderly individuals’ privacy, there is a world of difference between holding a court-appointed professional accountable for oversight decisions and spending, and safeguarding an individual’s medical information. Right now, the court blankets everything per vaguely written sections of the state’s Uniform Probate Code.

Kass says, “We need to have a really profound conversation between privacy and secrecy, and develop a better way of measuring it.”

It should also be the rule, not the exception that, unless it is physically impossible, the elderly person appear in court and be questioned by the judge before even being called incapacitated. The same goes for hearing from all concerned relatives – rather than simply taking the word of whoever filed an emergency petition to have the senior put under guardianship. There should be full hearings, as stated in state law, and relatives should be first in line to become guardians.

In general, relatives should also not be barred from seeing each other. Outgoing Rep. Conrad James, R-Albuquerque, tried to curb the practice of guardians banning family visits that might upset a ward, saying, “Isolating seniors from their family is the first step of abuse in these cases.” He plans to have a legislator carry a similar proposal in the session that starts next month.

And the requirement that family members sign a waiver of liability releasing “any and all liability for actions taken in (his/her) capacity as conservator and trustee” before they can receive their inheritance flies in the face of accountability. If conservators and guardians are indeed professionals, they should be able to stand by their decisions.

It is shocking that guardians and conservators are not licensed in New Mexico and, while some may have various certifications, those can be purchased online after a short exam. Requiring some training, certification and state licensing in financial planning, social work and elder care seems more than reasonable for allowing someone to take control of a life and an estate.

Dimond’s series is a wake-up call to New Mexico. Unless and until these changes are implemented, the best advice for those dealing with a parent with purported diminished capacity comes from Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship. He tells family members to “never even consider guardianship or hiring an attorney.”

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

Full Article & Source:
Editorial: Guardianship system needs accountability

See Also:
Who Guards the Guardians?